United States v. Seabourne ( 2022 )

Case: 21-11043 Document: 00516338495 Page: 1 Date Filed: 05/31/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 31, 2022
No. 21-11043
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Kenneth Hoyd Seabourne,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CR-153-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Kenneth Hoyd Seabourne appeals the imposition of a two-level
“threat of death” enhancement for his conduct during two robberies. We
affirm.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-11043
During September and October 2020, Seabourne robbed three Texas
banks. The first robbery occurred on September 3, 2020. Seabourne placed a
bag on the counter of the Prosperity Bank in Odessa and gave the teller a note
that read: “All $ in Bag! / I am armed / No Dye Packs – No Bait $ / Don’t
fuck w/me.” On September 29, 2020, Seabourne robbed the First Abilene
Credit Union using the same method; the note itself was lost, but the teller
said it read: “I have a gun, give me all the money, do not fuck with me and no
bait money.” The teller also testified that Seabourne reached into his shirt
and grabbed what appeared to be a gun and pointed it at the teller through his
shirt. The third bank robbery occurred on October 15, 2020, at the Peoples
Bank in Lubbock. This time, the note read: “All $ in Bag! / I’m Armed!! /
No Dye PacKS or Bait $ / Don’t fuck w/ me.”
Seabourne pleaded guilty to three counts of robbery for these
incidents. Based on the notes that Seabourne handed to the tellers at the
Lubbock and Odessa robberies, his PSR assigned a two-level “threat of
death” enhancement under U.S.S.G. § 2B3.1(b)(2)(F) for those offenses. At
sentencing, Seabourne objected to the “threat of death” enhancements, the
court rejected his objection and adopted the PSR. Now Seabourne appeals,
arguing that the district court erred by finding the notes sufficient to create a
threat of death for the purposes of U.S.S.G. § 2B3.1(b)(2)(F).
Because Seabourne preserved the alleged error by objecting to the
PSR’s application of the “threat of death” enhancement, we review the
district court’s interpretation and application of the guidelines de novo.
United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010).
U.S.S.G § 2B3.1(b)(2)(F) provides that if, during a robbery, “a threat
of death was made,” the offense level should be increased by two levels. Its
commentary explains that a “threat of death” enhancement applies in “cases
in which the offender(s) engaged in conduct that would instill in a reasonable
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Case: 21-11043 Document: 00516338495 Page: 3 Date Filed: 05/31/2022
No. 21-11043
person, who is a victim of the offense, a fear of death.” U.S.S.G. § 2B3.1,
cmt. (n.6). Thus, in United States v. Soto-Martinez, we affirmed the
application of the “threat of death” enhancement when a bank robber
handed the teller a note that read: “I have a gun. I just want money. Start
with the $100.00. Stay Quiet!!!” 317 F.3d 477, 478 (5th Cir. 2003). We
acknowledged that there was a “slight inferential step” between “I have a
gun” and “I just want money” to “[g]ive me the money or I will shoot you,”
(which is one of the examples given by the Sentencing Guidelines
commentary) but found that inference “entirely reasonable, particularly
amid the stress and tension of a bank robbery.” Id. at 479; see also United
States v. Ladell, 341 F. App’x 21, 22 (5th Cir. 2009) (affirming the application
of the “threat of death” enhancement when the note “threatened that
people would get hurt or suffer if the teller did not comply” and the
defendant patted his pocket).
Seabourne contends that this case is different because instead of
saying “I have a gun,” he wrote “I am armed.” “Armed,” Seabourne
contends, could refer to a broad range of weapons including nonlethal ones—
therefore, he argues, it would not be reasonable to infer a threat of death from
his notes. We disagree. Again, while it may be a “slight inferential step,” one
may reasonably understand “armed” to mean “armed” with a deadly
weapon—particularly in the context of a bank robbery. Therefore, we find it
entirely reasonable for a bank teller to infer that a person has a gun and may
shoot him or her when the robber warns that he is “armed” and demands
money. See United States v. Reagan, 264 F.3d 1141, 1141 (5th Cir. 2001)
(unpublished) (affirming a “threat of death” enhancement when the note
warned “I do have a device that will hurt a great deal” should the teller not
comply).
The district court’s judgment is AFFIRMED.
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